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by Peter Moskos

October 15, 2014

"Can't tase me, bro!"

There's an excellent article by the Atlantic's Conor Friedersdorf about the use of a taser for non-compliance. I've long argued that, without an actual threat, tasers should not be used for compliance. The taser is too easy, usually not necessary, and sometimes kills people.

Now I'm all for people complying with lawful orders; you do not have the right to refuse a lawful police order. But this case gets at the heart of non-compliance. What do you do when somebody does not comply?

Cops will be quick to justify use of force for non-compliance. I don't have a quibble with that. But what kind of force is reasonable? Lethal force is not OK. Hands-on is OK. But what about the taser? Sometimes you need to take a step back and ask what kind of society we want to live in.

Personally, I don't want to live in a society where non-threatening people -- whether they are criminally stupid or not is beside the point -- routinely get zapped by government agents.

(Just think, this is why our Founding Fathers were wise enough to include the right against self-incrimination in the 5th Amendment. Were it not for the right to remain silent, police could and would use tasers in routine interrogations.)

Tasers have been used -- shamefully, I might add -- against naked people, the homeless, a legless man in a wheelchair (you can't make this shit up), a 76-year-old man driving a tractor, a 10-year-old girl, a guy running on a baseball field (I thought that one was OK), the "Don't tase me, bro" dude, a guy who didn't understand English, and the misuse of a taser led to a good police offier's suicide. If you scroll down to the bottom of the Atlantic piece, you can see lots of bad taser-use videos.

Now there are good uses for the Taser, and tasers have been shown to reduce injuries. (Serious question: how many injuries prevented per taser-related death is acceptable?) But none of this, not even National Institute of Justice recommendations, justify the massive overuse of tasers in law enforcement. Police are trained to use tasers for non-compliance. In many of those above instances, officers were acting in accordance with their training and regulation. And then the same officers were punished when the craziness of such training and policy becomes apparent.

What I like about this recent case is that I can see the complete absolutely correct unassailable logic... for both sides of the case.

Here's what happened: a jogger, Gary Hesterberg, is stopped by a law-enforcement officer for an infraction. Hesterberg doesn't have ID and says his last name is Jones. He then fails to comply with a lawful order and resists arrest. Finally, when attempting to flee, Hesterberg gets tased and arrested. So clear cut. So logical. But the problem with such a description is that no matter how logical each step is, at some point it is absurd -- to use phrasing of the court it is not "objectively reasonable" -- to use a Taser against a jogger violating a leash law!

In court, the government conceded the violation was minor. Lying to police officer and failure to comply are less minor, but, said the court, "not inherently dangerous or violent." Still, all this and the jogger's resistance to arrest "weighs in the government's favor." The arrest was valid. The court accepted the government's claim that "using communication skills was not a viable alternative to effect Hesterberg's arrest." Nor was arresting the jogger at his house -- he gave his real address but said his last name was Jones -- given the jogger's willingness to lie. The jogger said he wasn't even certain that green-uniformed Federal Park Ranger was law enforcement. The court said, tough titty, kid. And the court also understood that the jogger could have avoided this whole mess had he simply A) given his real name or B) complied with lawful orders.

And court understands that the decision made by the officer needs only be reasonable "from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." This makes allowance for the fact that "police officers are often forced to make split-second judgments."

Now given all this, I would think the court is about to offer unqualified support for the government's position and taser use. From Tennessee v. Garner (cops can't shoot a fleeing felon), when know the government interest in stopping a fleeing suspect is not absolute:
The Court finds that the intrusion on Hesterberg’s Fourth Amendment interest to be free from being tased greatly outweighs the minimal governmental interest in apprehending him for his violations of the law. Cavallaro’s use of her taser on Hesterberg was therefore unconstitutional.
Did you get that? Here it is again: "The government’s interest in apprehending Hesterberg is simply too low to justify his tasing even if he willfully disregarded such a warning." Daaaaamn.

Weren't listening? One last time: "The Court is not persuaded that the need to identify Hesterberg for his low-level violations of law justify Cavallaro’s use of the taser, even if the taser was the only tool remaining to collect Hesterberg’s identifying information." Boo-ya.

So what are you supposed to do? Let him jog away? Uh, yes. This is news to me and to most cops,

Let him flee. Even if you have less-lethal weaponry at your disposal.

This requires a seismic shift in the minds of law enforcement. Under certain circumstances sometimes it is OK, permissible -- even required -- to simply allow a person under arrest to flee. Cops will hate this, but it is a common sense, pro-police discretion, and pro-4th Amendment decision. It is worth remembering that though Garner was not "pro-police," it turned out great for cops: scores fewer officers shot and killed!

The judge, and this is important, even recognized that her decision goes against the regulations of the law enforcement agency that would permit tasing a 9-year-old girl or an 8-month pregnant woman: "The Court cannot imagine a rational fact-finder that would find it reasonable to tase a nonviolent and nonthreatening nine-year-old or eight-month-pregnant woman fleeing from non-serious misdemeanors." Good.

The jogger got $50,000.

This certainly puts the rank-and-file in an awkward position. Their departmentally justified use-of-force policy is deemed, after the fact, to be unconstitutional and negligent. Once again somebody is telling police what not to do without any clear guidance as to what to do.

Since you know it will take ages for police departments to catch up. I wouldn't mind seeing a few police officers sue their own police department for policies that encourage or require officers to violate their oath to the constitution. "Failure to obey" doesn't mean you get to use every toy on your belt. Police need to use their intelligence and common sense to understand the totality of the circumstance. I've got no problem with that. Because police generally have, despite what some may think, plenty of intelligence and common sense. Officers just need support from above and permission to use that discretion.

I'm curious what cops out there might think. If you think this decision is absurd -- if you think it should be OK for a cop to tase a minor offender fleeing arrest -- at what kind of weaponry would you draw the line? Would rubber bullets be OK? Dog? Tear gas? Flash grenade? Sound cannon? Anything short of the lethal force prohibited by Garner? Or was Garner wrongfully decided?

In an age where more and more less-lethal weaponry is in the hands of police, I think it's important to clarify what kind of force is reasonable. For a leash-violation, a taser crosses the line.

[Here's a pdf of the court decision by the Federal Northern District of California case 13-cv-01265-JSC.]

[Also, with regards to previous posts on race and police, it seems relevant to point out that the jogger was white. Had the jogger been black, I'm sure this would be seen as a racial incident and some people would claim, "Police never would have stopped a white jogger, much less tased him!" And this despite seeing again and again that police sometimes overreact to people of all races.]


Jason said...

I guess this situation is absurd, but I am not sure how we can have nice things if you can't use force to make stops for petty crime. Is every public park open for a leash law scofflaws, public drinking, and open fires where ever you please because the only recourse that park rangers have to petty crime is to annoy the uncooperative violator with a chorus of kumbaya? In addition, I think that another important question is can you no longer use force to detain a dumpster diver or violator of a civil traffic infraction? Do we miss catching the next fugitive like Eric Rudolph or Warren Jeffs because they could just give a false name and run away and no force can be used to stop them?

PCM said...

Interesting comment. But the decision does not say you can't use force. It says you can't *tase* somebody.

I mean, police managed just fine before tasers. I think society will be OK if we simply say you can't tase somebody if the initial infraction is so minor.

There are plenty of other options. My personal favorite, hands-on, comes to mind. You can still tackle the person.

What I like about this decision is the assumption that the taser is actually a much more major use of force than society should accept so readily.

But yes, had the jogger been a major fugitive, I guess then he would get away to kill another day. But given the circumstances, I can live with that possibility.

hotrod said...

No discussion about taser use is complete without this gem - I didn't see it in the Atlantic story. Admittedly, like many really dumb things, it's an outlier.


hotrod said...

The Hesterberg case is an interesting one. Hesterberg is a less sympathetic figure to me than the than the ranger. He sounded like kind of a douche and, as the court noted, not credible on some aspects. The ranger had outsiders inserting themselves into the interaction. That would certainly be distracting and potentially dangerous. Moreover, I'm assuming that she's typically farther than backup from many other types of law enforcement. A railroad cop acquaintance of mine once told be about routinely being alone many, many miles from backup and it changing the way he did business than when he had worked a typical mid to large sized city.

hotrod said...

Side note: As a general rule, if you have a concern about what's going on between a cop and a citizen, don't interfere. Wait, watch, ask questions afterwards, whatever. For that matter, take a video (IANAL and can't advise you on legal matters about videotaping). But don't distract one or the other parties. Stuff gets weirder as groups get bigger.

Continuing on - Hesterberg didn't just decline to responsd, he lied to a cop. I simply don't believe his statements that he didn't think she was a cop. Whatever the complexities of his thought process, this had to escalate the tension for the cop at least somewhat, since she had to have realized as soon as the report came back that he was lying to her about who he was.

Lastly, before I wind up agreeing with Peter, I would make the only partially related point that if we want (as I do) cops to engage proactively as opposed to just working calls, then interactions escalating in a seeming inexplicable manner are going to happen some times. That doesn't mean that they should wind up where this one did, but people are complicated and weird stuff snowballs.

hotrod said...

All that said, I'm inclined to think, for now, that the decision is a positive one. It makes two good points, both of which Peter beat me to and I'm mostly only articulating differently.

-Outcome, as opposed to process, matters, at some level. Just saying that you properly followed steps A to F isn't good enough if the situation winding up in F is catastrophically absurd. That may not matter for throwing people in jail, maybe not even for firing a cop, but at some level, it has to matter. Wrapping it around "reasonable" may be legitimitely complicated, but it still matters.

-Tasers are part of the continuom (sp?) of force. Seems obvious, and I assume that it's generally trained that way, but it seems that some cops at some times, haven't treated it that way, but rather as a compliance magic wand. Moreover, since you have to be tased to use a taser, you tend to think that it's not as big a deal as others do. I've been tased (in training) - wasn't that big of a deal. Doesn't mean that it's ok to tase me if you wouldn't have been willing to lay hands on me. Like most things - good training mitigates this, bad agencies\groups\habits exacerbate it.

campbell said...

but rather as a compliance magic wand

This. I really don't understand why it's so common for agencies to allow the taser as the next level of force past verbal. At my agency the taser is treated like the baton, as intermediate force. The subject has to be dangerous or violent and use on pregnant women is forbidden. All these videos of cops tasing people for things like refusing to sign a ticket makes it look like the profession is full of sadists.

Dave in IL said...

Campbell, I totally agree. The problem began with the way that the taser was sold initially. I think police agencies took away two things from the early marketing: 1.) Tasers are pretty harmless; 2.) Woo hoo, now I just zap people instead of doing my job and going hands on.

Well, as we have found out, tasers are occasionally a factor in suspect deaths, so they aren't harmless. And you are correct that the eagerness to tase, rather than use other intermediate options makes the officers involved look sadistic (and lazy, IMHO).

A review of the taser's place on the use of force continuum is long, long overdue. If I'm the chief (which won't ever happen ;) ) I would make it clear that you NEVER tase for verbal non-compliance or running. You are a police officer, sometimes you have to run! The subject should be combative before such a tool is used. And even then, trained police should usually be able to drop a combative person before a taser becomes necessary.

PCM said...

Interesting comments, all.

I very much like that distinction between outcome as opposed to process. That really does get at the core of this case and common sense. The process was correct; the outcome was bad.

And I also like this case because the officer did seem to be intelligent, professional, and all-in-all doing her job even in a can't win situation. Hesterberg seems to be an entitled douche. (Though, having had a federal park ranger in my class, I can say it is not uncommon for reasonable people to question their park rangers' legal authority.)

Also, regarding backup: "When Cavallaro called for backup she knew the closest ranger to her was ... about a 25-minute drive away. Dispatch summoned San Mateo County Sheriffs, who were much closer, along with two rangers."

PCM said...

As to cops without backup, I'm much more sympathetic to these officers having and using taser. Compared to say, a city cop with a partner and backup 1 minute away.

But to me the issue is when you use a taser. And it's great as a less-lethal alternative to a handgun. But just as you can't shoot a fleeing felon in the back (I don't think Tennessee v. Garner is accepted today as common sense, even among police), I have no problem with saying you can't use a taser on a non-threatening or fleeing misdemeanant.

Jay Livingston said...

My guess is that at some point in the interaction, this ceased to be a matter of enforcing a minor law and became a matter of challenge to the cop's authority (in the cop's mind, and maybe in the jogger's mind, though that's not relevant). All that looks very different days or more later, when it looks like the cop had tased a non-violent, non-threatening person for committing a minor offense and maybe for being an asshole.

PCM said...

Certainly in the jogger's mind it was about authority. I actually think for the officer involved, it was simply about making an arrest. She had decided the guy was under arrest. He had physically resisted her. I think she was just waiting for backup.

You could call that a challenge to authority, but in the cop mindset I think not letting a suspect go is sort of different.

It's not the authority button it presses but a more prime directive of policing: you don't let the bad guy walk away. That's a pretty cardinal rule of cops and robbers. And as an officer you use do anything short of lethal force to make sure.